In a ruling filed today, the Fourth District Court of Appeal ruled that failure to raise the issue of exhaustion of administrative remedies in the trial court operates as a waiver and the issue cannot be raised for the first time on appeal (Mokler v. County of Orange).
Since the California Supreme Court’s 1941 decision in Abelleira v. District Court of Appeal, 17 Cal. 2d 280, failure to exhaust administrative remedies has been treated as a jurisdictional defect. The Mokler court engaged in a close reading of Abelleira and concluded that not all jurisdictional defects are created equal.
The court noted that there is a split of authority in the courts of appeal on this issue. Given this split, you should look for this issue to appear sometime soon on the California Supreme Court’s docket.